Arent Fox's This Week in Telecom - January 16, 2012
Welcome to the latest edition of Arent Fox’s This Week in Telecom, our weekly newsletter designed to keep you apprised of recent developments in telecommunications policy, legislation, and litigation. Follow our Telecom Group on Twitter! Click here.
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FCC Announcements l The Mobile Market l FTC and Privacy Regulation l New Markets: SmartGrid and E-Health l Intercarrier Compensation l Compliance Notes l Broadband News l In the Courts l Legislative Outlook l Events
Federal Communications Commission (FCC) Announcements
- The FCC has released the Tentative Agenda for its next Open Meeting to be held January 31, 2012, at 10:30 am Eastern. It contains only one item, a Report and Order and Further Notice of Proposed Rulemaking on Lifeline and Link Up Reform. To view the Tentative Agenda, click here.
- Chairman Genachowski delivered a speech on Lifeline Reform at an event held by Third Way in which he outlined proposed reforms to prevent “waste, fraud, and abuse” in the program. He also highlighted measures that he has overseen at the FCC to make the agency more efficient and to eliminate “outmoded or counterproductive rules”. The Fact Sheet describing these proposals and measures is available here.
- Reply Comments on the FCC Notice of Proposed Rulemaking on Next-Generation 911 (NG911) service are due February 9, 2012. To view the Federal Register notice on the NPRM, click here. To read the NPRM, click here. To view the order granting requests for extension, click here.
Please contact Ross Buntrock, Alan Fishel, Michael Hazzard, or Jon Canis (contact information below) for further information.
The Mobile Market
- FCC Chairman Julius Genachowski has responded to the December 7 letter from Rep. Fred Upton, R-Mich., Chair of the House Energy and Commerce Committee, explaining his decision to release the staff report concluding that the AT&T/T-Mobile merger was not in the public interest. “As we explained at the time, there were strong reasons to release the report,” Mr. Genachowski stated. “Based on this substantial record, Commission staff prepared a detailed report for public release synthesizing and analyzing the extensive arguments and factual submissions made in the record by the Applicants and numerous participants. Releasing the report promoted fairness and transparency to the public, the participants in the proceeding, and all interested parties,” Mr. Genachowski wrote. “Furthermore, given the Applicants’ public statement that they were not abandoning the transaction and indeed planned to return to the FCC for approval, the report contained information of ongoing relevance to the public and all participants in the proceeding, including the Applicants. Lastly, unlike the working draft HDO [hearing designation order] and other deliberative Commission documents that are not disclosed to the public, the staff report was both final and intended for release.” To view the Chairman’s letter, click here.
Please contact Ross Buntrock, Michael Hazzard, or G. David Carter (contact information below) for further information.
Federal Trade Commission (FTC) and Privacy Regulation
- On January 12, 2012, the Electronic Privacy Information Center (EPIC) filed a letter with the FTC asking it to investigate recent changes to Google Search, called Google “Search Plus”. EPIC complains that Search Plus will result in the inclusion of personal data, such as photos, posts, and contact details gathered from its Google+ social networking cite. EPIC is also concerned that Search Plus may be anticompetitive and violate the terms of Google’s March 2011 settlement agreement with the FTC, which requires Google to establish a comprehensive privacy program. To view the letter, click here.
- The FTC is seeking public comment on issues raised at a December 2011 workshop on the privacy and security implications raised by facial recognition technology. The workshop, entitled “Face Facts: A Forum on Facial Recognition Technology”, focused on the current and future commercial applications of facial detection and recognition technologies, and explored an array of current uses of these technologies, their possible future uses and benefits, and the resulting privacy and security concerns. Facial detection and recognition technologies have already been employed in a variety of new contexts, including online social networks, digital signs, and mobile apps. The deadline for filing comments is January 31, 2012. More information and instructions for filing can be found here.
Please contact Ross Buntrock, Alan Fishel, Stephanie Joyce, or Jason Koslosfky (contact information below) for further information.
New Markets: SmartGrid and E-Health
- Applications for the Department of Energy (DOE) “Smart Grid Data Access” Funding Opportunity Announcement (FOA) are due March 1, 2012. DOE will provide up to $8 million to promote partnerships between utilities and third-party technology innovators for the development and implementation of applications that provide access to electricity consumption data. More information is available here.
Please contact Stephanie Joyce, Jeffrey Rummel, G. David Carter, or Stephen Thompson (contact information below) for further information.
Developments in Intercarrier Compensation
- On January 11, 2012, Frontier Communications filed a response with the Wisconsin Public Service Commission to Verizon’s protest of its proposed intrastate switched access tariffs. On January 6, 2012, Verizon filed a letter noting that Frontier’s tariffs apply the interstate rate to only terminating VoIP-PSTN traffic. Verizon asserted that the FCC’s November 18, 2011 Intercarrier Compensation Reform Order requires the “application of rates not higher than interstate switched access rates to both originating and terminating VoIP-PSTN traffic.” In response, Frontier argued that the FCC “was clear in its Order that it was not requiring reductions in originating access rates at this time.” Frontier further argued that the FCC is addressing originating switched access rates in its Further Notice of Proposed Rulemaking, and that the FCC had “no intent to flash-cut these rates to interstate levels.” PSC Ref. No. 158110.
Please contact Ross Buntrock, Jon Canis, Michael Hazzard, Stephanie Joyce, or Adam Bowser (contact information below) for further information regarding intercarrier compensation matters.
Compliance Notes
- Competitive Local Exchange Carriers (CLECs) must use the Electronic Tariff Filing System (ETFS) to file their initial base tariffs by tomorrow, January 17, 2012. All subsequent tariff filings must be made via ETFS. A copy of the FCC announcement can be found here. The FCC has issued an updated Public Notice to assist CLECs with their filings, which can be found here (DA-11-1706, DA-11-1887, WC Docket No. 10-141).
The FCC rule requiring CLECs to use ETFS went into effect November 17, 2011. A copy of the Report and Order establishing the rule can be found here (FCC-11-92, WC Docket No. 10-141). - CLECs that maintain switched access tariffs with the New Jersey Board of Public Utilities (NJ BPU) are required to file amended tariff pages, reflecting a step-down in intrastate access rates by February 1, 2012. In 2009, the NJ BPU had ordered CLECs to match the incumbent carriers’ intrastate switched access rates. Incumbent LECs now are required to lower their current intrastate switched access rates by February 1, 2012, which in turn requires CLECs to update their rates. A copy of the order outlining the step-down timetable may be found here (Docket No. TX08090830).
- Carriers providing service in California are required to file complete versions of their current tariffs on file with the California Public Utilities Commission (CA PUC) by February 1, 2012. This filing must be made on CD-ROM as per CA PUC practice. More information about the filing may be found here.
- Form 499-Q is due February 1, 2012 for all filers that are not considered to be de minimis for Universal Service filing purposes. This filing encompasses historical revenues from the fourth quarter of 2011 and projected revenues for the second quarter of 2012. A copy of the current FCC Form 499-Q can be found here.
- Voice over Internet Protocol (VoIP) providers and Commercial Mobile Radio Service (CMRS) providers who rely on traffic studies to report interstate revenues on FCC Form 499-Q must submit these studies by February 1, 2012 to the Universal Service Administrative Company (USAC) and the Chief, Industry Analysis and Technology Division of the FCC.
- Under the FCC’s new access tariff rules adopted November 18, 2011 (FCC 11-161), see December 5 client alert here, all local exchange carriers (LECs) that trigger the “access stimulation” criteria are required to cap their switched access rates to the lowest incumbent carrier in the LEC’s service area. Affected LECs are required to update their federal switched access tariff rates by February 13, 2012.
A copy of FCC 11-161 may be found here (WC Docket Nos. 10-90, 07-135, 05-337, 03-109; GN Docket No. 09-51; CC Docket Nos. 01-92, 96-45; and WT Docket No. 10-208). - The Universal Service contribution factor for the First Quarter of 2012 is 17.9%. A copy of the notice can be found here.
Please contact Ross Buntrock, Jon Canis, Michael Hazzard, or Katherine Barker Marshall (contact information below) for further information regarding compliance matters.
Broadband News
- On January 11, 2012, Chairman Genachowski gave a keynote speech at the Consumer Electronics Show (CES) arguing for incentive spectrum auctions and highlighting the importance of the Internet. Without the Internet, almost none of the products at CES would work, he noted. He then discussed how ubiquitous broadband and universal adoption will grow the U.S. economy and make it a world leader, and argued that incentive spectrum auctions are an important way to achieve those goals. Chairman Genachowski called on Congress to grant the FCC the authority to do auctions, but warned against “micro-managing”. He is hopeful that incentive auction legislation will be included in the next vote on payroll tax legislation. The full text of Chairman Genachowski’s speech is available here.
The other Commissioners also spoke at the CES in various forums. Commissioners Clyburn and McDowell sparred over the need for Open Internet rules, while Commissioner Copps lamented the appeals that have been filed against the FCC’s recent Intercarrier Compensation and Universal Service Reform order. - The FCC Wireless Telecommunications Bureau will host an informational forum on February 1, 2012, from 9:30 am to 3:30 pm Eastern, on distributed antenna systems (DAS) and small cell technologies that augment mobile broadband and wireless services. The forum is being held in cooperation with the National Association of Telecommunications Officers and Advisors (NATOA). More information is available here.
Please contact Ross Buntrock, Alan Fishel, Michael Hazzard, Jeffrey Rummel, or Jason Koslofsky (contact information below) for further information.
In the Courts
- On January 9, 2012, the United States Supreme Court denied the petition for a writ of certiorari from the Litman plaintiffs attempting to sue Verizon for bogus “administrative fees”. As we previously reported, the Third Circuit held that the claims are subject to mandatory arbitration in light of the Court’s recent decision in Concepcion. The Litman plaintiffs attempted to distinguish the AT&T Mobility contract in Concepcion from Verizon’s arbitration clause, which states that the entire arbitration clause should be deemed null and void if a court invalidates any part of it. New Jersey law prohibits class arbitration waivers like Verizon’s, but the Third Circuit still applied Concepcion in enforcing the single-plaintiff-arbitration-only provision. Litman v. Cellco Partnership, No. 11-644 (S. Ct.).
Please contact Ross Buntrock, Jon Canis, Michael Hazzard, Stephanie Joyce, or Joseph Bowser (contact information below) for further information.
Legislative Outlook
- Senator John “Jay” Rockefeller IV, D-W.Va., Chair of the Senate Commerce Committee, issued a statement in response to the Department of Commerce (DOC) COMPETES Report, a study of how federal investment in high technology can foster innovation and grow the U.S. economy. The Report was mandated in the America COMPETES Reauthorization Act of 2010 that Chmn. Rockefeller introduced and Pres. Obama signed into law last year. The Chairman stated that “Underinvestment in sectors like STEM education, high-tech research, and 21st century infrastructure has diminished the nation’s competitive edge. Sustained federal investment in these sectors will not just help grow today’s economy, but it will also lay the groundwork for generations to come.” To view the full statement, click here. To view the DOC’s America COMPETES website, click here.
Please contact Stephanie Joyce (contact information below) for further information.
Upcoming Events
- Location Announced: The Wireline Committee of the Federal Communications Bar Association will conduct a CLE seminar titled “Understanding USF and ICC Reform” on January 19, 2011, from 6:00 to 8:15 pm Eastern, at Dow Lohnes PLLC, 1200 New Hampshire Avenue, Washington, DC. To register, click here.
Please contact Ross Buntrock, Jonathan Canis, or Stephanie Joyce (contact information below) for further information.
For further information, please contact any of our attorneys in the Arent Fox Telecommunications Group, including:
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Ross A. Buntrock |
Michael B. Hazzard |
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Jonathan E. Canis |
Stephanie A. Joyce |
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Alan G. Fishel |
Jeffrey E. Rummel |
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Adam D. Bowser |
Jason A. Koslofsky |
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Joseph P. Bowser |
Katherine Barker Marshall |
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G. David Carter |
Stephen Thompson |